Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

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1 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al. Plaintiffs And EDDIE BERNICE JOHNSON, SHEILA CIVIL ACTION NO. JACKSON-LEE, and ALEXANDER 5:11-CV-0360-OLG-JES-XR [Lead Case] GREEN, MEMBERS OF THE UNITED STATES CONGRESS And TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS HOUSE OF REPRESENTATIVES And TEXAS STATE CONFERENCE OF NAACP BRANCHES; HOWARD JEFFERSON, JUANITA WALLACE and REV. BILL LAWSON Plaintiffs-Intervenors v. STATE OF TEXAS, et al. MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, (MALC Plaintiffs CIVIL ACTION NO. and 5:11-CV OLG-JES-XR [Consolidated Case] THE HONORABLE HENRY CUELLAR,

2 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 2 of 12 Member of Congress, CD28; THE TEXAS DEMOCRATIC PARTY and BOYD RICHIE, in his official capacity as Chair of the Texas Democratic Party; and LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC and its individually named members Plaintiff-Intervenors v. STATE OF TEXAS, et al., Defendants TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiff CIVIL ACTION NO. v. 5:11-CV-0490-OLG-JES-XR [Consolidated Case] RICK PERRY, In His Official Capacity as Governor of the State of Texas, Defendant MARGARITA V. QUESADA; ROMEO MUNOZ; MARC VEASEY; JANE HAMILTON; LYMAN KING; and JOHN JENKINS Plaintiffs 2 CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR v. [Consolidated case] RICK PERRY, in his official capacity as Governor of the State of Texas, and HOPE ANDRADE, in her official capacity as Secretary of State of the State of Texas Defendants

3 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 3 of 12 JOHN T. MORRIS Plaintiff CIVIL ACTION NO. v. SA-11-CA-615-OLG-JES-XR [Consolidated Case] STATE OF TEXAS, et al. Defendants EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, BRUCE ELFANT, ALEX SERNA, SANDRA SERNA, BETTY F. LOPEZ, DAVID GONZALEZ, BEATRICE SALOMA, LIONOR SOROLA- POHLMAN; ELIZA ALVARADO; CIVIL ACTION NO. JUANITA VALDEZ-COX; JOSEY SA-11-CA-635-OLG-JES-XR MARTINEZ; NINA JO BAKER; TRAVIS [Consolidated case] COUNTY and CITY OF AUSTIN, Plaintiffs v. STATE OF TEXAS, et al Defendants PLAINTIFFS CONSOLIDATED RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs Shannon Perez, Harold Dutton, Jr., Gregory Tamez, Sergio Salinas, Carmen Rodriguez, Rudolfo Ortiz, Nancy Hall and Dorothy DeBose (collectively Perez Plaintiffs file this Consolidated Response to Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction and, In the Alternative, Motion for Judgment on The Pleadings and Motion for Partial Summary Judgment and would show the court as follows: INTRODUCTION 1. To the extent standing is being raised in the State s motions, the proper reference is Justice Stewart s opinion in United States v. Scrap, 412 U.S. 669, fn14 (1973: We have 3

4 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 4 of 12 allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote, See Baker v. Carr, 369 U.S This response is being prepared under some strictures which are difficult to maneuver. The depositions of the State s witnesses are under some form of seal and it is unclear the extent to which we can cite to them. References to that testimony are limited and can be more fully developed once the limitations are clarified. 3. Finally, as a bit of a grievance about the accuracy of the State s motion, the State s motion to dismiss for lack of jurisdiction asserts: The Perez Plaintiffs allege that State s classification of prisoners results in excessive population deviation They do not allege, however, that the existing practice results in a total deviation of more than 10%. (State s Motion at p. 23. Indeed our 3rd amended complaint (at p.6 alleges: Texas House District 8 includes a prison population of 15,193 significantly over representing the residents of District 8 the District is under populated by 12%, rendering the top to bottom deviation in the plan at some 17%...Congressional District 8 includes some 21,239 incarcerated prisoners results in a constitutionally impermissible deviation of minus 3% from the ideal. ARGUMENT & AUTHORITIES I. THE COURT HAS SUBJECT MATTER JURISDICTION OF THE PEREZ CLAIMS AND THERE IS NO BASIS FOR SUMMARY JUDGMENT. 1. Rather than adopt the State s format, we believe we can best respond by affirmatively stating our arguments in response to the somewhat confusing arrangement adopted by the State. 2. The State attacks us on two points, as we understand their document: 1. Political gerrymander claims are nonjusticiable, ignoring the explicit arguments we make under the 4

5 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 5 of 12 Larios decision. 2. The misallocation of the prison is a nonjusticiable political question, ignoring that violation of one person-one vote issues have been deemed proper concerns of the judiciary since Baker v. Carr. II. THE LARIOS CLAIMS WHICH EMBODY BOTH POLITICAL AND RACIAL GERRYMANDER ISSUES ARE ONE PERSON - ONE VOTE CONTENTIONS. 1. Perhaps a brief history is in order. From early on, the Supreme Court differentiated the one person-one vote command between Congress and State legislative bodies. In Roman v. Sincock, 377 U.S. 695, 710: the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination. 2. In later years in Mahan v. Howell, 410 U.S. 315 (1973 and White v. Regester, 412 U.S. 755 (1973, the Court gave its approval to deviation ranges of 10% top to bottom, in both cases this tolerance was tied to state policies of preserving political subdivisions, viz: the state achieved a constitutionally acceptable accommodation between population principles and its policy against cutting county lines 412 U.S. at fn. 8. These cases resulted in an assumption that the state had a safe harbor of sorts if it kept its deviation in the 10% range in redistricting its own legislature. Indeed the State s principal witness on the house plan, Gerardo Interiano, testified that in developing the House plan, the State proceeded on the assumption that {they} were entitled to rely upon a 10 percent up and down deviation within the plan Iteriano, Vol. 2 at 29. Of course, there was no articulated state policy undergirding this assumption. 5

6 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 6 of This landscape changed meaningfully with Cox v. Larios, 542 U.S. 947 (2004 during last decades redistricting. In Larios, the three judge trial court had rejected the Georgia legislative plan on one person-one vote grounds, holding that inasmuch as the plan was tainted by, among things political gerrymander, that the state was not entitled to the 10% deviation tolerance. As explained by Judge Higginbotham in Henderson v. Perry, 399 F. Supp. 2d 756, 759: Shortly thereafter, in Cox v Larios, the Court summarily affirmed the judgment of a threejudge court that had rejected a redistricting plan of the Georgia legislature as failing to conform to the principle of one person, one vote. The district court held that because the legislature sought to give advantage to certain regions of the state and to certain incumbents in an effort to help Democrats and hurt Republicans, Georgia was not entitled to the 10% deviation toleration normally permitted when a state is drawing lines for its legislature. Saying further The Court has recently demanded exactitude in the population of Districts drawn for partisan gain. Id. at fn Of course, this is exactly what we allege, and we believe can demonstrate took place here. We recognize that adherence to the county line rule will produce population deviation in rural districts, but we are not talking about that issue. We are talking urban counties such as Dallas and Harris, among others, which contain multiple legislative seats all confined within the county. In Harris, for example, the deviation range among the districts is 9.74%. Given today s technology, everyone agrees that drawing minimal deviation plans in those counties was a simple undertaking, yet the State continued on the assumption of a 10% safe harbor, and engaged in rather obvious racial and political gerrymanders, as we describe below. Nor are we talking about a trivial number of legislative seats. The counties upon which we 6

7 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 7 of 12 focus, Harris, Dallas, Tarrant, El Paso, Hidalgo and Nueces comprise 40% of the seats in the Texas House. 5. To give the Court a flavor of the issue, we attach as exhibits, colored maps from 2 of the counties at issue, Dallas (Exhibit 1 attached and Hidalgo (Exhibit 2 attached. The witness Interiano explained the bizarre configurations of Dallas Districts 100, 103, 104 and 105 thusly This was to give both Representative Anderson and Representative Harper-Brown the opportunity to be reelected. Interiano dep. at 39. (Excerpts attached as Exhibit 4. Notably, these two representatives are both Republicans. The meanders of Districts 41 and 40 in Hidalgo County are even more imaginative as they seem to pick and choose desirable neighborhoods or jettison undesirable voting precincts. Interiano explained as regards district 41: we believe that District 41 would give Representative Pena the opportunity to be reelected. Id at 32. In order to give the Republican Pena this opportunity, the State was forced also to dramatically underpopulate the district so that it is the smallest district in the county with some 13,000 less people than adjoining District 40. Ed Martin s Report (Exhibit 3 attached describes in detail the slicing and packing of the minority communities in the urban counties and the implications for the political process and the unnecessary population deviations that emerge as a result. We attach also the population figures for each newly enacted Texas House Districts (Exhibit 5 attached and Congressional Districts (Exhibit 6 attached. III. THE PLACEMENT OF THE PRISION POPULATION IS A ONE PERSON ONE VOTE ISSUE NOT TO BE DISMISSED AS A POLITICAL QUESTION. 1. It is correct to say that there is no underlying factual dispute regarding the prison population. Nor are we dealing with some unsettled question of state law. We attach the State s Response to Requests for Admission (Exhibit 7 attached and State s Answers to Interrogatories (Exhibit 8 attached, which validate their attachments. Thus we know to a person how many 7

8 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 8 of 12 inmates were incarcerated in each county at issue as of March The State has admitted, for example, as regards Congressional District 8 that 21,239 incarcerated prisoners were treated as residents for purposes of calculating the District s total population in the 2011 redistricting process. Inasmuch as the ideal population for a Congressional District is 698,488, it is at least mathematically clear that exclusion of the prison population results in District 8 being under populated by some 3%, a constitutionally unacceptable deviation. 2. We also know that the State, by its own records, considers that the inmates are not legal residents of the county of their incarceration, see the document entitled Texas Department of Criminal Justice- Offenders on Hand by Legal County of Residence attached as part of Exhibits 7 and 8. This tells us, for example, that in the State s mind that there are 29,798 inmates in the system whose Legal County of Residence is Harris County. 3. This is, of course, entirely consistent with the state statutory scheme, for the Election Code is specific: A person who is an inmate in a penal institution does not, while an inmate, acquire residence at the place where the institution is located. Texas Election Code State witnesses have conceded that they were aware of the prison issue and its inherent population deviation problem, and that it would have been a fairly simple matter to allocate the population to their County of Legal Residence. Indeed Plaintiff Dutton raised the issue during the course of legislative consideration of the bill. 5. Is mere sloth a sufficient justification for ignoring the one person one vote violations that emerge from inclusion of the inmate population in the county of their imprisonment? The case that comes closest to the issue is, I suppose, Mahon v. Howell, 410 U.S. 315 (1973. There, as here, the census allocation was the state s proffered justification for 8

9 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 9 of 12 inclusion of naval personnel in the senatorial district where their ship was docked. The trial court rejected the state s redistricting plan and crafted an interim plan that reallocated the population to a multimember district. The Supreme Court was unanimous in affirming this portion of the trial court order noting: The legislative use of this census enumeration to support a conclusion that all of the Navy personnel on a ship actually resided within the state senatorial district in which the ship was docked placed upon the census figures a weight that they were not intended to bear. 410 U.S. at fn. 11. Granted that the numbers were more significant in Mahon but remember also that the court was dealing with state legislative redistricting and the greater latitude accorded. Here, we are dealing, at least in one instance, with Congressional redistricting and a Constitutional office, historically of much more judicial concern, see Cook v. Gralike, 531 U.S (2001. Under any circumstance, the Plaintiffs should be entitled to present their claim for declaratory relief and should not be summarily dismissed on what is clearly an issue that warrants judicial consideration. CONCLUSION For these reasons, Perez Plaintiffs respectfully request that this Court deny the Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction and, In the Alternative, Motion for Judgment on The Pleadings and Motion for Partial Summary Judgment in their entirety. 9

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11 Case 5:11-cv OLG-JES-XR Document 227 Filed 08/23/11 Page 11 of 12 CERTIFICATE OF SERVICE I hereby certify that on the 23 rd day of August, 2011, I electronically filed the foregoing using the CM/ECF system and have served all counsel of record/parties as indicated below: David Schenck david.schenck@oag.state.tx.us Matthew Frederick matthew.frederick@oag.state.tx.us Angela V. Colmenero angela.colmenero@oag.state.tx.us; Ana M. Jordan ana.jordan@oag.state.tx.us; David Mattax david.mattax@oag.state.tx.us, Attorneys for Defendants Served via the Court s electronic notification system Nina Perales Nperales@Maldef.Org Marisa Bono Mbono@Maldef.Org Rebecca Mcneill Couto Rcouto@Maldef.Org Mark Anthony Sanchez Masanchez@Gws-Law.Com Robert W. Wilson Rwwilson@Gws-Law.Com Attorneys For Maldef, Texas Latino Redistricting Task Force, Rudolfo Ortiz, Armando Cortez, Socorro Ramos, Gregorio Benito Palomino, Florinda Chavez, Cynthia Valadez, Cesar Eduardo Yevenes, Sergio Coronado, Gilberto Torres, Renato De Los Santos, Joey Cardinas, Alex Jimenez, Emedla Menendez, Tomacita Olivares, Jose Olivares, Alejandro Ortiz, Rebecca Ortiz Served via the Court s electronic notification system Jose Garza Garzpalm@Aol.Com Mark W. Kiehne Mkiehne@Lawdcm.Com Ricardo G. Cedillo Rcedillo@Lawdcm.Com Attorneys For Mexican American Legislative Caucus Served via the Court s electronic notification system Gerald H. Goldstein Ggandh@Aol.Com Donald H. Flanary, III Donflanary@Hotmail.Com Served via the Court s electronic notification system Paul M. Smith Psmith@Jenner.Com Served Via Electronic Mail Michael B. Desanctis Mdesanctis@Jenner.Com Served Via Electronic Mail Jessica Ring Amunson Jamunson@Jenner.Com Served Via Electronic Mail J. Gerald Hebert Hebert@Voterlaw.Com Served Via Electronic Mail Jesse Gaines P.O. Box Fort Worth, Tx Served by First Class Mail Attorneys For Plaintiffs Quesada, Munoz, Veasey, Hamilton, King And Jenkins Luis Roberto Vera, Jr. Irvlaw@Sbcglobal.Net George Joseph Korbel Korbellaw@Hotmail.Com Attorneys For Intervenor-Plaintiff League Of United Latin American Citizens Served via the Court s electronic notification system Rolando L. Rios Rrios@Rolandorioslaw.Com Attorney For Intervenor-Plaintiff Henry Cuellar Served via the Court s electronic notification system Gary L. Bledsoe Garybledsoe@Sbcglobal.Net Attorney For Intervenor- Plaintiffs Texas State Conference Of Naacp Branches, Eddie Bernice Johnson, Sheila Jackson-Lee, Alexander Green, Howard Jefferson, Bill Lawson, And Juanita Wallace Served via the Court s electronic notification system John T. Morris johnmorris1939@hotmail.com Served via electronic mail John T. Morris, Pro Se Served via the Court s electronic notification system 11

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13 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 1 of 1 Exhibit 1 to Perez Plaintiffs' Consolidated Response Page 1 of 1

14 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 1 of 1 Exhibit 2 to Perez Plaintiffs' Consolidated Response Page 1 of 1

15 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 1 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 1 of 13 The Anatomy of a Retrogressive and Discriminatory Map Minority Voting Rights Trampled by Partisan Gerrymander in Texas House Plan Report by Mr. Ed Martin for the Perez plaintiffs in 5:11-CV Perez et al v Perry et al Pursuant to Federal Rule 26, the following report contains: (i It is Mr. Ed Martin s opinion that the State of Texas PlanH283 is retrogressive in violation of the Federal Voting Rights Act and that those violations are, in part, achieved by employing unnecessarily excessive population deviation within several large counties. (ii All demographic census and election data used to support Mr. Martin s opinions was made available by the Texas Legislative Council, as referenced in the report. (iii The attached exhibits include a series of maps produced by the Texas Legislative Council that outline the boundaries of the State PlanH283 and alternative Texas House plans, shaded to illustrate population by race/ethnicity and election results at the VTD level. (iv Mr. Martin is a political strategist with extensive experience in electoral and demographic targeting and redistricting. Although Mr. Martin has not authored any publications on the subject, he has been directly involved in every redistricting cycle since 1981 and is widely recognized for his ability to use his knowledge of demographics and redistricting law to draw and analyze redistricting plans. As a legislative Chief of Staff in , Martin drew maps that were ultimately adopted by the Legislative Redistricting Board and supported the State legal team by analyzing maps presented in Federal Court. In 1983, Martin drew plans for a legal settlement involving Harris County Senate districts. In , Martin was directly involved in drawing legislative and congressional plans and consulted with parties to the subsequent court cases. In 1995, Martin drew plans and assisted in negotiations that led to a settlement of a Shaw challenge to Harris and Dallas County legislative districts and later provided support for a legal team in a similar challenge to Texas congressional districts. From , Martin drew and analyzed numerous plans for Texas congressional districts; assisting legislators and Members of Congress and preparing witnesses during court proceedings., finally concluding with the remand case that altered four South Texas congressional districts. In Martin drew a series of plans that were provided to the Commission chaired by Former Mayor Gus Garcia that looked at the possibility of adopting districts for the Austin City Council. In 2011, Martin drew redistricting plans that were proposed by legislators and analyzed many others for legislative debate. Martin has also assisted in local redistricting matters in Austin and Travis County. (v Mr. Martin has not testified an expert witness at trial or by deposition (vi Mr. Martin has requested $10,000 for preparation of this report, development of alternative plans, and assisting counsel with other expert witnesses in this case.

16 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 2 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 2 of 13 The Report: Minority Voting Rights Trampled by Partisan Gerrymander in Texas House Plan H283 A singular consistency defines the partisan gerrymandering Texas Republicans achieved in their legislative redistricting plan: the map was drawn to benefit Anglo Republicans at the expense of the burgeoning Texas minority population. The dilution of minority vote opportunity was achieved with 21st Century technological precision. Existing minority opportunity districts were packed, while other minority communities and areas of minority population growth were cracked and split into Anglo-dominated districts to reduce the number of districts where Latino and African American voters have the opportunity to elect their candidate of choice. Texas House Plan: Statewide Retrogression Between 2000 and 2010, Texas experienced dramatic population growth, and at least 89% of Texas dramatic population growth was attributable to non-anglos. Between 2000 and 2010, the Texas population grew at a 20.6% rate, more than double the national rate of population growth. The Hispanic population grew at a 41.8% rate - ten times faster than Anglo population growth rate - and was responsible for 65% of all Texas population growth. The African American population grew at a 22.1% rate - faster than the state as a whole and five times faster than the Anglo population growth rate. The Asian population grew at a 71.1% population rate, and almost matched Anglo growth in raw numbers. The Anglo population growth rate was only 4.2%. Texas Population Growth Population 2010 Population Increase in Population % Increase Pop Share of Increase White 10,933,313 11,397, , % 10.8% Hispanic/Latino 6,669,666 9,460,921 2,791, % 65.0% African American 2,364,255 2,886, , % 12.2% Asian 554, , , % 9.2% Non White Total 9,918,507 13,748,216 3,829, % 89.2% Texas Total 20,851,820 25,145,561 4,293, % 100.0% Source: 2010 U.S. Census

17 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 3 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 3 of 13 Political Gerrymander Achieved by Packing and Cracking Minority Voters Despite the overwhelming growth of the non-anglo population in Texas, the State of Texas adopted a redistricting plan for the Texas House that reduces the number of districts where minority voters can elect their candidate of choice when compared to the current benchmark plan, H100. This statewide retrogression was achieved three ways: by packing already existing and effective minority districts to avoid the creation of additional minority districts, which was done by drawing these districts to meet an arbitrary statistical standard like 50% Spanish Surname Voter Registration, although this "standard" was applied inconsistently depending on its political impact (e.g., District 78 in El Paso, where retrogression occurred to protect an Anglo Republican incumbent; by "cracking" areas of rapid minority growth to eliminate effective minority coalition districts and prevent the creation of additional minority opportunity districts; and by using population deviation within a county to affect a partisan gerrymander, as was obviously done in Hidalgo Co. As a result of this partisan gerrymander, the State Plan H283 reduced the number of effective districts by five to eight seats, depending on a determination of the effectiveness of three Latino districts that were retrogressed. In fact, the State plan eliminates at least one and possibly as many as four effective Latino opportunity districts, as indicated on the chart below. Alternative statewide plan H232 followed all traditional state redistricting principles and split the minimum number of county lines, was introduced by Rep. Garnet Coleman, and received overwhelming minority support during House debate. PlanH232 would create at least nine, and possibly twelve more effective minority districts than the State plan, and secure the effectiveness of the three existing Latino opportunity districts that were retrogressed by the State plan. State PlanH283 PlanH232 Benchmark (H100 Minority Opportunity 44 (3 weakened Latino 34 (3 weakened African American Effective Coalition Districts Total Effective Districts Explanatory Notes: 1 The three "weakened" Latino opportunity districts are Districts 35, 78, 137, all of which experience retrogression under the State Plan H283, and that could make it less likely that these districts would perform effectively in the coming decade.

18 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 4 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 4 of 13 2 The basis for an "effective" minority opportunity district in the chart above is a district that has less than 50% Anglo Voting Age population (i.e., majority African American, Latino or Coalition that has also performed effectively for minority candidates of choice. 3 This chart assumes current HD27 moved from coalition to African American status. Two coalition Districts (46 and 120 elect African American officeholders. 4 The following standards relate to effectiveness of coalition districts: The benchmark plan H100 has four effective coalition districts (27, 46, 120, 149 that are less than 33% Anglo VAP, and four additional effective districts (93, 101, 102, 106 that are less than 50% Anglo VAP and have elected the minority voters candidate of choice. The benchmark also has another three districts (57, 96, 107 that have less than 50% Anglo population and have elected the minority voters candidate of choice during the past decade. In the State Plan, H283, District 27 becomes an African American district, and District 149 is eliminated, leaving only three coalition districts (46, 101, 120. Every other effective majority minority coalition district is eliminated In PlanH232, District 27 also becomes an African American district, but the plan preserves and strengthens District 149 as one of six effective coalition districts that are less than 33% Anglo VAP (28, 46, 102, 106, 120, 149 and creates four more effective districts (54, 96, 101, 132 that are less than 50% Anglo VAP. District 57 is also preserved as a district that is less than 50% Anglo in total population. The Impact of Population Deviation on the PlanH283 Political Gerrymander In order to meet the State Constitution's requirement to split as few county lines as possible in the Texas House plan, there is inevitably a statewide population deviation for a Texas House plan approaching 10%, given the sheer number of rural counties among the 254 counties in Texas. However, within Texas urban counties with multiple Texas House districts, there is no rationale for such a large population deviation between districts. Several of the following sections contrast the State PlanH283 with "low deviation" demonstration plans for major Texas counties that demonstrate how a plan with minimal deviation actually creates more minority opportunity districts and partisan fairness. The minority districts in these demonstration plans are based on the PlanH232 map discussed in the Plan Comparison above and create the same number of effective minority districts as that PlanH232. Specific Local and Regional Examples of Partisan Gerrymandering Fueled by Illegal Retrogression and Excessive Deviation Harris County - PlanH283 Map Eliminates an Effective Minority District and Fails to Create Additional Minority Districts In the last decade, Harris County grew by almost 700,000 residents and is now only 33% Anglo. The Harris County Anglo population actually declined by over 82,000 persons.

19 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 5 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 5 of 13 Meanwhile, the Harris Co. Hispanic population increased by almost 552,000 The Harris Co. African American population increased by over 134,000. The Harris Co. Asian population increased by 76,827. Anglos make up only 33% of Harris County population, but they would control 54% of the House Districts in the State-passed PlanH283. The Harris Co. population grew just slightly below the state population growth rate, and the State made a policy choice to create only 24 House Districts in Harris County, which currently has 25 Although minorities were responsible for over 100% of Harris County population growth, the state PlanH283: completely eliminates an effective multi-ethnic coalition District 149 and pairs the District 149 incumbent (Vo with the incumbent in neighboring Latino District 137 retrogresses the Hispanic VAP in District 137 by 4.4%, despite the paring the District with neighboring minority District 149; and packs District 148 and fails to create additional minority districts in Harris County, although alternative plans demonstrated additional minority districts could be created. The Elimination of District 149 and Its Pairing With a Diluted District 137 District 149 is located in the multi-ethnic Alief community of Southwest Houston and Harris Co., an area that experienced rapid minority population growth in the past decade. Currently, District 149 is only 26.6% Anglo VAP and has consistently elected the minority candidate of choice, Rep. Hubert Vo, since Vo, who is Vietnamese-American, has consistently won support from the District's African American, Latino and Vietnamese voters, who make up 82.7% of the District's voting age population and also vote as a coalition in local school board races, to cite one example Just east of District 149 is District 137, which has also experienced rapid minority growth and now has a Hispanic VAP of 59.8% and Black + Hispanic VAP of 73.3%. In fact, in its 2001 submission to the Department of Justice seeking preclearance for the current Texas House districts, the State of Texas described District 137 as the fifth majority Hispanic district in Harris Co., and indeed, District 137 has elected the minority candidate of choice throughout the decade. In State PlanH283, District 137 is elongated and extended westward into the current District 149, and the incumbents (Vo and Hochberg are paired. The remaining minority population of the existing District 149 is split primarily between Districts 133 and 136, both Anglo-controlled districts, as illustrated by the shaded map that shows the location of minority population in Harris County (Exhibit x. Not only was District 149 eliminated, but the remaining "new" District 137 was retrogressed, as the Hispanic VAP was diluted by 4.4% - from 59.8% to 55.5%. The Bizarre Elongation of Districts 145 and 148 and Packing of District 148 Currently, District 145 is an effective Latino opportunity district based in the East End and Southeast Houston Latino community. District 148 is an effective Latino opportunity district

20 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 6 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 6 of 13 based in the traditional North Side and Heights neighborhoods. Both districts include core precincts that have been part of an effective Latino opportunity district for decades. In the state's PlanH283 map, Districts 145 and 148 are both elongated for miles, slithering beside each other through a narrow channel around the northern edge of downtown Houston. In PlanH283, District 145 is elongated for miles, extending north and west of downtown Houston for the first time since the district was created to take core Heights precincts from District 148 and then beyond that, all the way to the Loop 610 and Highway 290 interchange. The district also stretches farther southeastward to Beltway 8, extending roughly 25 miles across the city. District 148, which has performed as an effective Latino since its creation, is also elongated and extended farther to the west and northwest and to the east all for the purpose (as stated by the author of the House plan, Rep. Burt Solomons of making the District population 50% Spanish Surname Voter Registration. However, much of the new territory packed into District 148, unlike the core communities removed from the district, does not typically have high Hispanic voter participation, and election returns do not indicate that packing District 148 makes it any more effective. In fact, the packing of District 148 only makes it difficult to create an additional Latino opportunity district in Harris County, which was done in PlanH232 and the "low deviation" PlanH287. The Cracking of the West Harris County Minority Growth Area The current District 132 is only 43.8% Anglo VAP and the current District 135 is only 38.8% VAP, reflecting an area of rapid minority growth in West Harris County along and west of State Highway 6, north of I-10 and south of U.S Neither District 132 nor 135 is currently effective for minority voters, but alternative plans H232 and H287 demonstrate that an effective majority-minority District can be drawn in the area. Instead of creating that district, the State map split this minority growth area among three Anglo-controlled districts; 132, 135 and 138. Alternative Plan H287: Harris County Low Deviation Plan Preserves all Existing Minority Districts and Creates Two Additional Minority Districts Plan H287 has a mere 1.81% overall deviation, compared to a 9.74% Harris County deviation in the State PlanH283. PlanH287 is virtually identical in terms of minority effectiveness to PlanH232 that was presented on the House floor and received unanimous support from minority legislators from Harris Co. and includes the following characteristics. > District 149 is maintained as a compact, effective minority opportunity district. 17.3% Anglo VAP - or an 82.7% non-anglo VAP. The District has a 61.1% Black + Hispanic VAP and a 21.6 "Other" (Asian VAP. Black + Hispanic Citizen VAP = 52.8%, Asian CVAP = 17.5%, Anglo CVAP = 28.3% > District 137 is maintained as a compact, effective Latino opportunity district % Hispanic VAP and a 72.9% Black + Hispanic VAP. Anglo VAP is only 15%. Anglo CVAP only 35%. Black + Hispanic CVAP is 53.6%

21 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 7 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 7 of 13 > All Six Existing African American Opportunity Districts are Maintained With a Higher Black VAP than Hispanic VAP > All Five Existing Latino Opportunity Districts Maintained and a New Sixth Majority Latino District 138 is Created District 138 population data is similar to the effective District 148, with a Hispanic population of 63.2% and a Hispanic VAP of 57.9% District 138 has an Anglo CVAP of only 47%, a Black + Hispanic CVAP of 48.4%, and a non-anglo CVAP of 53% > A new Majority-Minority District 132 is created in West Harris County District 132 is 19.3% Black, 45.9% Hispanic and 64% Hispanic, with an Anglo VAP of only 31.6% and a Black + Hispanic VAP of 59.4% The District has a 50.2% non-anglo CVAP Harris Co. Plan Comparison State PlanH283 PlanH287 Benchmark (H100 Minority Opportunity Latino African American Effective Coalition Districts Total Effective Districts Plan Deviation 9.74% 1.81% n/a Dallas County - Plan H283 Gerrymander: Retrogression Eliminates Effective Minority Coalition Districts, Fails to Create Additional Latino District In the last decade, the Dallas County population grew at a slower rate than the state as a whole and will lose two State House districts, dropping from 16 to 14 House seats. The Anglo population of Dallas Co. decreased by over 198,000 between 2000 and 2010, a negative 20.2% growth rate. The Dallas Co. Hispanic population grew by 243,211. The Dallas Co. African American population grew by 73,016 The Dallas Co. Asian population grew by 30,302. Anglos make up only 33% of Dallas County population, but they would control 58% of the Districts in the State House PlanH283.

22 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 8 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 8 of 13 Even though minority population was responsible for over 100% of the Dallas Co. population growth, PlanH283 creates no new minority opportunity districts in Dallas County and eliminates effective majority-minority coalition districts. As illustrated in shaded minority population maps (Exhibit x, PlanH283: uses a bizarre configuration in West Dallas County to dilute a trending minority District 105 and prevent creation of an additional Latino Opportunity District; eliminates two effective majority-minority coalition districts 101 and by splitting areas of rapid minority growth in East and Northeast Dallas Co. into five Anglocontrolled Districts. Majority-minority District 106 (Grand Prairie is eliminated and its population is not used to create an additional minority district in West Dallas Co. contains an unnecessary 8.8% population deviation within Dallas County. Shaded Hispanic Population Maps Demonstrate West Dallas County Gerrymander Preserved Partisan Advantage in District 105, Prevented an Additional Latino District Currently, Irving-based District 105 has only a 36.1% Anglo VAP and is experiencing rapid Latino population growth. The existing neighboring District 106 has only a 35.9% Anglo VAP, and between the two districts, there is sufficient Latino population to create an additional effective minority opportunity district. Instead of creating that district, PlanH283 extends District 105 south through a series of narrow channels that split seven predominantly Latino precincts, dividing the Grand Prairie Hispanic population while reaching far to the south for Anglo population. Latino District 104 was packed, and then looped around this bizarre southern extension of District 105 to run back north up the western border of the county. To the north, a long narrow arm of Latino District 103 is extended through District 105 in the city of Irving, splitting ten precincts to remove Hispanic population from District 105. The Anglo incumbent (Rep. Linda Harper-Brown testified in the Senate Redistricting Committee hearing on the House Plan (HB150 that this configuration violated the Voting Rights Act, and asserted that District 105 is currently a protected district. As a result of this bizarre configuration, the Anglo VAP of District 105 is increased from 36.1% to 41% and no additional Latino District is created by the State plan. Two Effective East/Northeast Dallas County Majority-Minority Districts Eliminated by Splitting Minority Population into Five Anglo Districts During the last decade, three majority-minority districts in East and Northeast Dallas County experienced rapid minority population growth and elected the minority candidate of choice, but were eliminated by the State PlanH283. Including: District 101 had an Anglo VAP of 46.7% and a Black + Hispanic VAP of 48.3%. PlanH283 moves District 101 out of Dallas County. District 102 had an Anglo VAP of 43% and a Black + Hispanic VAP of 49.6%. Plan H283 increases the Anglo VAP from 43% to 51.2% Alternative Plan H288: Dallas County Low Deviation Plan Preserves Existing African American Opportunity Districts, Creates an Additional Latino District and Two Effective Majority-Minority Coalition Districts

23 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 9 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 9 of 13 Plan H288 has a mere 1.72% overall Dallas County deviation compared to a 8.88% Dallas County deviation in the State PlanH283. PlanH288 is virtually identical in terms of minority effectiveness to PlanH232 that was presented on the House floor and received support from minority legislators from Dallas Co. and includes the following characteristics. > All four existing Dallas County African American Opportunity Districts are maintained with a higher Black VAP than Hispanic VAP; > Both existing Latino Opportunity Districts and are maintained as effective districts that include traditional core Latino precincts in Dallas Co.; > A new Latino-majority District 105 is created that is: 66.3% Hispanic and 60.4% Hispanic VAP, with Black + Hispanic VAP of 69, an Anglo VAP of only 25.4% and a 50.4% majority non-anglo Citizen VAP. > Two Effective Majority-Minority Coalition Districts are Preserved and Enhanced District 102 is drawn as 80.6% non-anglo District that has an Anglo VAP of only 24.2%, a Hispanic VAP of 46%, a Black VAP of 22.3% and a Black + Hispanic VAP of 67.7%. A 59.9% majority of Citizen VAP is non-anglo; Black + Hispanic CVAP is 51.6% District 101 is preserved as a majority-minority District with a 46.4% Anglo VAP and a 48.7% Black + Hispanic VAP. Dallas Co. Plan Comparison State PlanH283 PlanH288 Benchmark (H100 Minority Opportunity Latino African American Effective Coalition Districts Total Effective Districts Plan Deviation 8.88% 1.72% n/a Tarrant County: Plan H283 Packs Minority Opportunity Districts, Fails to Create Additional Majority-Minority District In the last decade, the Tarrant County population grew by 362,815 residents, but only 41,882 of that population growth was Anglo, meaning minority population growth accounted for almost 89% of the Tarrant County population growth.

24 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 10 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 10 of 13 Hispanic population increased by 197,687 African American population increased by 79,809 Asian population increased by 31,321 The State Plan H283 simply maintained the status quo: preserving two effective existing minority opportunity districts and one majority-minority coalition district. The House plan s sponsors claim they created a "new" coalition District 101, but it simply replaces the existing District 93. Existing minority opportunity Districts 90 and 95 were packed in the House plan to prevent creation of a majority-minority District 96, which had a rapidly growing minority population in the benchmark plan and had elected the minority candidate of choice in District 101 replaces District 93 as a Majority-Minority Coalition District Current District 93 has a 55% Black + Hispanic VAP and a 37.9% Anglo VAP. The new District 101 has only a 29.5% Anglo VAP and contains the bulk of current District 93's Arlington and Grand Prairie population, but it is shifted south to take in minority precincts from the existing District 96 to prevent its creation as a majorityminority district. Bizarre and Packed Configuration of Districts 90 and 95 Prevents Creation of Additional Majority-Minority District District 90 is already an effective Latino opportunity district but PlanH283 extended its boundaries into existing Districts 95 and 96 to meet an arbitrary and unnecessary 50% Spanish Surname Voter Registration (SSVR standard. District 95 is already an effective African American Opportunity District, but its boundaries were extended west of I-35 to take in areas of African American growth to protect the Republican incumbent in District 96. Alternative Plan H289: Tarrant County Low Deviation Plan Preserves Existing Minority Opportunity Districts, Creates Additional Effective Majority-Minority Coalition District Plan H289 has a mere 1.08% overall Tarrant County deviation compared to a 6.72% Dallas County deviation in the State PlanH283. PlanH289 is virtually identical in terms of minority effectiveness as PlanH232. In PlanH289: District 95 is preserved as an effective African American Opportunity District District 90 is preserved as an effective Latino Opportunity District District 106 replaces the existing District 93 as an effective majority-minority Coalition District in the Arlington-Grand Prairie area, with an Anglo VAP of 29.3, which is almost identical to the 29.5% Anglo VAP of District 101 in the State Plan H283. The Black + Hispanic VAP of District 106 is 59.5%. The non-anglo CVAP of District 106 is 56.3% In addition to matching the State Plan's replacement for District 93, Plan H289 creates a District 96 that is only 48.8% Anglo VAP and includes areas of rapid minority growth in Southern Tarrant County. The Black + Hispanic population of the district is 50.3%

25 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 11 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 11 of 13 Tarrant Co. Plan Comparison State PlanH283 PlanH289 Benchmark (H100 Minority Opportunity Latino African American Effective Coalition Districts Total Effective Districts Plan Deviation 6.72% 1.08% n/a Fort Bend County PlanH283 Fails to Create Additional Effective Majority-Minority District During the last decade, Fort Bend County grew by 232,923 residents. Hispanic population grew by 64,096 Asian population grew by 59,217 African American population grew by Anglo population grew by 47,892 Fort Bend County is now only 38% Anglo, but in the State PlanH283, Anglo voters would control 71% of the 3.5 Districts in Fort Bend County. As indicated by the maps shaded for minority population by VTD, this partisan gerrymander was achieved by splitting the minority community outside the African American Opportunity District 27 among the Districts 26, 28 and 85 (which extends into neighboring rural counties. Alternative PlanH290 Creates an Additional 77.4% Minority District in Fort Bend County PlanH290 is almost identical in terms of minority effectiveness to PlanH232 that was presented on the House floor and received support from minority legislators. Both PlanH283 and PlanH290 have a low deviation of less than 1% for the three districts wholly contained In Fort Bend County, Both plans contain an effective African American Opportunity District 27. District 28 in PlanH290 is created as an additional effective majority-minority District that is strikingly similar to the current Harris County District 149, which is directly across an "invisible" county line. District 28 has an Anglo VAP of only 25.5%, a Black + Hispanic VAP of 52.7% and an "other" (Asian VAP of 21.7%. The District has an Anglo CVAP of only 36.2% and a Black + Hispanic CVAP of 48.1% El Paso County: Partisan Gerrymander Retrogresses District 78 El Paso County is predominantly Latino and the county barely maintained five Texas House Districts after the 2010 census, forcing all districts to be drawn near the low end of deviation, so

26 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 12 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 12 of 13 population deviation is not an issue in the El Paso plans. However, illegal and unnecessary retrogression is clearly present in the State Plan H283. Four of the five existing El Paso Districts have populations that are overwhelmingly Hispanic and have Spanish Surname Voter Registration ranging from 66.2% to 84.4%. Adjoining District 78 has also supported and elected the Latino voters candidate of choice within the last decade, despite being drawn with only a 47.5% SSVR. In other areas of the state, the State Plan adopted a policy of packing existing effective Latino Opportunity Districts to reach an arbitrary 50% SSVR standard, which prevented the creation of additional minority districts. However, in El Paso County, where there is clearly enough Hispanic population in adjoining districts to increase the SSVR in District 78 to 50%, the partisan gerrymander required an inconsistency and a bizarre shape in the precincts east of the Franklin Mountains, and in District 78, the SSVR was decreased to 47.1% in an attempt to enhance the electoral chances of the Anglo Republican incumbent. Alternative PlanH232, with support of Hispanic members From El Paso County, created an effective District 78 with additional Latino population. In Plan H232, District 78 was enhanced to have a 50.5% SSVR and the Hispanic VAP was increased from 62.8% in the benchmark plan to 66%. The other four El Paso County districts are preserved as effective Latino Opportunity Districts with SSVR of at least 67.5% Hidalgo County: Excessive Deviation Used to Execute Partisan Gerrymander Hidalgo County is overwhelmingly Latino, and after the 2010 census, will contain 4 Texas House Districts and the majority of a fifth district. There is no reason for a wide deviation among the four districts wholly in Hidalgo County, as all current districts are effective Latino Districts that have consistently supported the Latino candidate of choice. However, in the state PlanH283, there is a deviation of 9.03%, with Districts 36, 39, and 40 having at least 172,000 residents and District 41 having only 160,238 residents, which is 4.41% under the ideal population The proposed PlanH283 District 41 is a bizarre configuration drawn by flipping over 98% out of the current Districts 40 and 41 and swapping their district numbers. District 40 is currently held by Rep. Aaron Pena, who switched parties to be become a Republican after being elected as a Democrat last November in an overwhelmingly Democratic district. District 41 is now held by incumbent Democratic Rep. Veronica Gonzales, who previously had the most competitive partisan district in Hidalgo Co., which still leaned Democratic. Most political observers assume the Hidalgo configuration was drawn to benefit Pena, who is a Member of the House Redistricting Committee. As the shaded maps indicate, the grossly under-populated District 41 was drawn by ripping apart communities to include every Republican precinct possible, and the excessive deviation was needed because additional population would have almost certainly have made the District more Democratic.

27 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 13 of 13 Exhibit 3 to Perez Plaintiffs' Consolidated Response Page 13 of 13 As a result of the population deviation and partisan gerrymander, Pena's District 41 might be considered more of a toss-up district which was narrowly carried by Republicans Rick Perry (49.6% and Jerry Patterson (50.9% over Democrats Bill White (49% and Hector Uribe (46.9% in the 2010 general election for Governor and Land Commissioner. Alternative PlanH291 has only a 0.4% deviation among the four Districts wholly in Hidalgo Co. and generally maintains their current demographic and partisan make up and protects exiting communities of interest in a compact configuration. District 35: Retrogression of an Existing South Texas Latino District Part of the Partisan PlanH283 Republican Gerrymander District 35 in the benchmark plan H100 is currently only 56.4% Hispanic Voting Age population (HVAP and, after electing the Hispanic candidate of choice in previous elections, did not elect the Hispanic candidate of choice in The state PlanH283 retrogresses the HVAP of HD35 from to 56.4% to 54.9% to improve the electoral chances of the incumbent Republican, an effort accomplished by packing neighboring District 43 and adding San Patricio Co. to District 35. This retrogression of Hispanic population in rural South Texas District 35 was not necessary to meet any other redistricting principles Alternative Plan H232, which had overwhelming support from legislators who represent effective Latino districts, created a District 35 with an HVAP increased to 63.9% while preserving all other Latino districts in the region and the state "County Line Rule." In PlanH183 (Gallego, both the existing Districts 33 and 34 are preserved as effective Latino opportunity districts by one additional county line cut (Nueces Co.. In PlanH283, District 33 is eliminated as an effective Latino opportunity district. Central Texas: PlanH283 Partisan Gerrymander prevents creation of District 54 as a Majority-Minority District In the state PlanH283, District 54, located in Bell and Lampasas Counties, is drawn with a 52.1% Anglo VAP to protect the Anglo Republican incumbent. In alternative PlanH232, District 54 is drawn as a majority-minority District that is only 46.6% Anglo VAP that was carried by the minority voters candidate of choice in 2008, by uniting the Killeen-Ft. Hood community that is split in PlanH283. Waco-based District 57 is also eliminated in PlanH283. In the benchmark plan H100, District 57 is a 53.2% Black + Hispanic District that elected the minority candidate of choice until the 2010 election. In state PlanH283, District 57 is effectively replaced by a 59.5% Anglo VAP District 12. In alternative PlanH232, District 57 is drawn as a Wacobased district that is only 49.5% Anglo.

28 Exhibit 4 to Perez Plaintiffs' Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 1 of 5 Consolidated Response Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, (MALC Plaintiff, TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, CIVIL ACTION NO. 5:11-CV-0360-OLG-JES-XR VS. (Consolidated STATE OF TEXAS, et al., Defendants. ***************************************************** ORAL AND VIDEOTAPED DEPOSITION OF GERARDO INTERIANO AUGUST 9, 2011 VOLUME 2 ***************************************************** ORAL and VIDEOTAPED DEPOSITION OF GERARDO INTERIANO, VOLUME 2, produced as a witness at the instance of the Plaintiffs, and duly sworn, was taken in the

29 Exhibit 4 to Perez Plaintiffs' Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 2 of 5 Consolidated Response Page 2 of 5 1 Q. Let's talk about compactness for a second. 2 A. Sure. 3 Q. Were you involved at all in connection with 4 the 2003 re-redistricting? 5 A. No. 6 Q. I don't mean for the legislature; for anybody. 7 A. No. 8 Q. Where did you work at that time? 9 A. I was in college. 10 Q. I might be able to save -- maybe I could have 11 saved a lot of time if I had asked this question first. 12 Do you have any knowledge about the development of the 13 congressional map that to your understanding, 14 Mr. Downton doesn't have more knowledge about? 15 A. No. 16 MR. HICKS: I pass the witness. 17 MR. MATTAX: Who wants to go next? 18 MR. RICHARDS: I'm coming. Just bear 19 with me a second. 20 THE WITNESS: Would you like these back? 21 MR. HICKS: No. They are yours to keep. 22 You can laminate them. 23 THE WITNESS: Frame them. 24 MR. HICKS: Frame them. 25 THE WITNESS: Even autograph them. 1 Q. Okay. Great. Number one, was there any 2 consideration to your knowledge of the placement of the 3 prison population in the redistricting process? 4 A. Yes, sir, it was considered. 5 Q. By whom? 6 A. I had several conversations with members about 7 whether that was something that was viable or not. 8 Q. And what -- what did you conclude? 9 A. From my understanding, is the legislature had 10 not passed a law that would require us to do it or that 11 even made it possible for us to do it considering the 12 time frame. 13 Q. If I told you that -- do you know who Jeff 14 Archer A. I do know Jeff. 16 Q. If I told you that Mr. Archer testified it 17 would have been a fairly simple possibility to 18 reallocate the prison population to the counties of 19 their residence, would you disagree with that? 20 MR. MATTAX: Object to form. 21 A. I wouldn't have the knowledge to disagree on 22 it. I'm not familiar of how that would have been done. 23 Q. (BY MR. RICHARDS Okay. Good enough. You do 24 recognize, don't you, there's a certain potential for 25 population deviation when prison population is allocated 1 MR. HICKS: Yeah. 2 MR. RICHARDS: Is that close enough? I 3 don't want to wrinkle my shirt. Is that all right? Is 4 that all right? 5 MR. MATTAX: You need to flip it around. 6 It's backwards. 7 MR. RICHARDS: Oh, I've got it backwards. 8 I can't see down there. 9 MR. MATTAX: There you go. 10 MR. RICHARDS: Are we in gear? 11 VIDEOGRAPHER: Yes, sir. 12 EXAMINATION 13 BY MR. RICHARDS: 14 Q. I represent the Perez plaintiffs in this 15 matter. 16 A. Yes, sir. 17 Q. And a few questions, if you would, with me. 18 One, was there -- now talking about the House of 19 Representatives redistricting. 20 A. Okay. 21 Q. And what's your familiarity with that? 22 A. I'm very familiar with it. 23 Q. You were intimately involved in the House 24 issues? 25 A. I would say so, yes, sir. 1 to the place where -- their incarceration? 2 A. Could you rephrase the question? 3 Q. Well, okay. Are you aware that there are 4 House districts that have substantial prison population 5 within the districts? 6 A. Yes. 7 Q. And do you recognize that that has a potential 8 for creating population deviation? 9 A. Yes, sir. 10 Q. Okay. In looking at the House plan, it would 11 appear to me that there was an assumption that you were 12 entitled to rely upon a 10 percent up and down 13 deviation within the plan. 14 MR. MATTAX: Object to form. You can 15 answer. 16 A. Yes, sir. 17 Q. (BY MR. RICHARDS I mean, that was your 18 assumption as to the law? 19 A. Yes, sir. Yes, sir. 20 Q. Okay. Now, I am told that one of the tools 21 you had available to you in your computer program was 22 an Anglo density program; is that true? 23 A. I'm not sure what you would be referring to, 24 an Anglo density program. 25 Q. A program which could show -- would show you

30 Exhibit 4 to Perez Plaintiffs' Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 3 of 5 Consolidated Response Page 3 of 5 1 the density of the Anglo population in any district. 2 A. You mean the percentage, the Anglo voting age 3 population percentage or the Anglo population 4 percentage? 5 Q. Uh-huh, yes. 6 A. Yes. Yes, sir. That's available to us. 7 Q. Okay. Are you familiar with the districts of 8 Hidalgo County? 9 A. Yes, sir. 10 Q. As they existed before -- I mean, the previous 11 district, correct? 12 A. I am more familiar with how they -- how they 13 are existing in the new map. 14 Q. Okay. 15 A. But I am familiar to some degree of what they 16 were like before. 17 MR. RICHARDS: Okay. Could you -- I 18 don't know where we are on exhibit numbers. Do you? 19 THE REPORTER: We're on MR. RICHARDS: Do you want to make this 21 12? I think I have an extra of this for you. 22 MR. MATTAX: Oh, okay. 23 MR. RICHARDS: Sorry. 24 MR. MATTAX: Got it? Got it. 25 (Deposition Exhibit No. 12 marked 1 A. Yes, sir, I believe it is. 2 Q. All right. In comparing the two plans -- that 3 is, the preexisting and the new -- is it fair to say 4 that somewhat less than 2 percent of the districts are 5 maintained in their previous configuration? 6 A. I never ran that number. I know that is 7 available to us, but I don't -- I never ran that 8 statewide. 9 Q. Okay, all right. Can you explain for us why 10 this configuration is so dramatically changed then from 11 the previous? 12 A. Sure. 13 MR. MATTAX: Object to form. 14 A. I think I stated this in the previous 15 testimony. In regards to Hidalgo County, the goal was 16 to give every member of the legislature statewide, 17 actually, the opportunity to be elected in the state 18 House map. In this regard, we believe that District would give Representative Peña the opportunity to be 20 reelected. 21 Q. (BY MR. RICHARDS All right. Looking at 22 Exhibit 13, do you know where Representative Gonzalez 23 lives? 24 A. I believe she lives somewhere over here if I 25 recall correctly. 1 Q. (BY MR. RICHARDS Do you recognize this as 2 the configuration of Hidalgo County districts as they 3 existed last go-around? 4 A. Yes, sir. I believe that's correct. 5 Q. And let's see, Representative Peña was what? 6 District 40? 7 A. Yes, sir. 8 Q. And Representative Gonzalez was 41; is that 9 correct? 10 A. Yes, sir. 11 MR. RICHARDS: 13, is that right? I'm 12 sorry, David. I only have one. I don't have an extra 13 one of this. 14 MR. MATTAX: Okay. I'll look over his 15 shoulder. 16 MR. RICHARDS: Okay. It's a fairly good 17 picture. 18 (Deposition Exhibit No. 13 marked 19 Q. (BY MR. RICHARDS Now, I've handed you what 20 we've marked as Exhibit 13; is that correct? 21 A. Yes, sir. 22 Q. Do you recognize that A. Yes, sir. 24 Q. -- as the newly enacted redistricting plan for 25 Hidalgo County? 1 Q. That little green finger that runs into 2 District 41? 3 A. I think so. 4 Q. Would it be fair to say that that line was 5 drawn to remove -- sorry -- that that configuration was 6 designed to remove Representative Gonzalez from 7 Representative Peña's potential district? 8 A. I don't think so. I think that district -- 9 the way that was drawn was to make sure that there were 10 no pairing of any members where it was not necessary to 11 do so. 12 Q. All right. So that may be the same thing, 13 right? 14 A. Could be. 15 Q. All right. And are you aware that in that 16 upper little corner of District 41, that Representative 17 Peña lives up in that vicinity? 18 A. Yes, sir, I think so. 19 Q. Okay. So this is an effort by the legislature 20 to avoid pairing of two incumbent legislators? 21 A. Yes, sir. 22 Q. Okay. Any other justification for it? 23 A. As far as MR. MATTAX: Object to form. Answer the 25 question.

31 Exhibit 4 to Perez Plaintiffs' Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 4 of 5 Consolidated Response Page 4 of 5 1 A. As far as the drawing of these two pieces? 2 Q. (BY MR. RICHARDS Uh-huh. 3 A. No, sir. 4 MR. RICHARDS: Okay. I'm at what? 14? 5 MR. MATTAX: Fourteen. 6 (Deposition Exhibit No. 14 marked 7 MR. RICHARDS: I do have an extra of this 8 for you. I'm sorry. Oh, sorry. 9 A. Thank you. 10 Q. (BY MR. RICHARDS I've handed you what's been 11 marked as Exhibit 14 and will represent to you that it's 12 the current configuration of at least a portion of the 13 Dallas County House districts. 14 A. Yes, sir. 15 Q. Does it A. Looks familiar. 17 Q. Looks familiar to you? 18 A. Yeah, yes, sir. 19 Q. All right. Can you give us the explanation 20 for what I would characterize as the somewhat odd 21 configuration of District 103? 22 MR. MATTAX: Object to form. 23 A. I believe that was something that we -- that 24 jointly between the committee staff or Ryan Downton and 25 myself communicated with Representative Anchia, and 1 those were some of the areas that he had expressed an 2 interest in representing. 3 Q. (BY MR. RICHARDS So it's your testimony that 4 this district is drawn in response to the request of 5 Representative Anchia? 6 A. Yes, sir. 7 Q. All right. And 104 which circles back behind A. Correct. 10 Q. -- can you offer any explanation for that 11 configuration? 12 A. I think 104 is more of a representation of why was drawn that way. So could I answer why 105 was 14 drawn that way and then address 104? 15 Q. Sure. 16 A. Representative Harper-Brown and Representative 17 Anderson are both paired in District 105. One of the 18 things that the chairman had expressed an interest in 19 doing was to again give every member of the legislature 20 the opportunity to be reelected. 21 As a result, Representative Anderson and 22 Representative Harper-Brown were paired together in the 23 same district, and Representative Anderson lives in 24 this portion of the district. 25 Q. You're now pointing to the lower -- 1 A. To the lower -- 2 Q. -- extremity of the district? 3 A. -- of District Q. Right, uh-huh. 5 A. And so we drew that down, and we drew around it. 7 Q. So the explanation for 104 is simply the end 8 result of accommodating Representative Brown? 9 A. Representative Harper-Brown and Representative 10 Anderson. 11 Q. Right. I'm sorry. 12 A. It was not -- it was not an issue of 13 accommodating Representative Harper-Brown. I believe, 14 in fact, that she had an amendment on the floor that 15 would have undone this configuration. It was more of 16 an issue of giving, you know, every member of the 17 legislature the opportunity to be reelected. 18 Q. Are you suggesting that Representative Alonzo 19 preferred this configuration? 20 A. No. I'm suggesting that Representative 21 Harper-Brown didn't necessarily agree with this 22 configuration. 23 Q. Do you have any sense of how this particular 24 configuration and the impact it had on the minority 25 community of Dallas County? 1 A. As much as possible, we tried to keep the 2 minority community in Dallas County together. 3 MR. RICHARDS: What -- 14? 4 MR. MATTAX: THE REPORTER: (Deposition Exhibit No. 15 marked 7 Q. (BY MR. RICHARDS I'll represent to you that 8 this Exhibit 15 is an overlay or an underlay of the 9 minority distribution of Dallas County. Would that 10 be -- does that look consistent with your recollection 11 of the A. Yes. 13 Q. -- dispersal of the minority community? 14 A. Yes. But just to confirm, this is just the 15 Hispanic population, correct? 16 Q. Yes. I'm sorry. It's just Hispanic, yes. 17 A. Okay. 18 Q. All right. That's right. And do you see 19 or -- seems to me that it is chopped up in little 20 pieces here and there? 21 MR. MATTAX: Object to form. 22 A. I wouldn't say that it's chopped up in little 23 pieces. No, sir. 24 Q. (BY MR. RICHARDS That's just me in the eye 25 of my -- eye of the beholder; is that right?

32 Exhibit 4 to Perez Plaintiffs' Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 5 of 5 Consolidated Response Page 5 of 5 1 A. I think so. 2 Q. Okay. You wouldn't argue, would you, that 3 this district -- these districts represent compact 4 districts, would you? 5 A. I believe that we tried to make them as 6 compact as possible, yes, sir. 7 Q. So this represents the maximum effort of the 8 Texas House to create as compact districts as possible? 9 A. On a statewide level, yes, sir. 10 Q. All right. Now, with respect to District 105, 11 would you agree then with me that you have fairly well 12 concentrated the Anglo population within that district? 13 A. I mean, according to this map that you gave 14 me, there's still quite a bit of Hispanic population 15 there as well as Anglo populations elsewhere. 16 Q. I mean, in A. I guess no. I wouldn't agree with you on 18 that. 19 Q. All right. 20 A. There's Anglo populations and in one -- I 21 mean, I guess I can't see Anglo populations on this 22 map. So I can't speak to that. I can only see, I 23 guess, where the Hispanic populations are focused. 24 Q. Okay. And do I understand you to have 25 testified that the explanation of District 105 is to 1 MR. OPIELA: Objection as to 2 congressional privilege. 3 MR. RICHARDS: Now, does that mean, as I 4 understand it, that I am foreclosed from inquiring as 5 to -- 6 MR. MATTAX: You're looking at the wrong 7 guy. 8 MR. RICHARDS: Well, he's back over 9 there. 10 MR. MATTAX: He probably needs to move up 11 here then. 12 MR. RICHARDS: Well, I'm not going to do 13 a lot with this, but I just MR. MATTAX: Well, let's wait. 15 MR. RICHARDS: I'm trying to understand 16 what our ground rules are with respect to inquiring MR. MATTAX: Do we have an extra mic? 18 MR. RICHARDS: Oh, here. I'm sorry. 19 MR. MATTAX: Go ahead and mic up. 20 MR. RICHARDS: This is not going to take 21 but a second. I'm just trying to understand. 22 MR. MATTAX: That's fine. Okay. Well, I 23 think -- why don't you ask a specific question, and 24 we'll see if it raises an objection. 25 Q. (BY MR. RICHARDS I see that -- well, I need 1 enhance the chances of reelection of the paired 2 incumbents? 3 MR. MATTAX: Object to form. 4 A. No. It's to give them the opportunity to be 5 reelected. What the map as a whole avoided is that 6 there were no pairings of a Democrat and a Republican 7 district or a Republican and a Democrat district. This 8 was to give both Representative Anderson and 9 Representative Harper-Brown the opportunity to be 10 reelected. 11 Q. (BY MR. RICHARDS The better opportunity to 12 be reelected? 13 MR. MATTAX: Object to form. 14 A. I would say the opportunity to be reelected. 15 Q. (BY MR. RICHARDS Okay, all right. Now, I've 16 been given -- I'm not sure what I can ask about it, but 17 we were given a privilege log yesterday or the day 18 before with respect to privilege being asserted by 19 members of Congress. Are you sort of aware of this 20 issue? 21 A. Yes, sir, I'm aware of it. 22 Q. Now, for example, looking at the privilege 23 log, I see that Congressman Lamar Smith communicated 24 with you on 5/20/11 with the congressional district 25 configuration. 1 to know my labeling -- Bates Range 403 dated 5/20/11 is 2 a communication from Congressman Lamar Smith to you, an 3 regarding congressional district configuration. 4 Can you tell me what that contained? 5 MR. OPIELA: Objection as to the -- if 6 the answer will require the disclosure of any 7 confidential information on the basis of congressional 8 privilege. 9 MR. MATTAX: My understanding of the 10 court order MR. RICHARDS: I just want to get it on 12 the record what the MR. MATTAX: I understand that. And my 14 understanding -- so the witness understands, my 15 understanding of the court order was that we were 16 instructed not to produce anything that would reveal 17 communications at the congressional level. So relying 18 on the objections of counsel for the congressional 19 level, then I would instruct you not to answer if, in 20 fact, it reveals that type of communication. 21 So, again, I'm relying on congressional 22 counsel to make those objections for us, but suggesting 23 that -- my understanding of the court order -- and 24 someone can disagree with me -- is that you shouldn't 25 answer those questions based on the court order.

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